Significant Professional Negligence Cases and Developments during the Past Year - A Review and Some Observations

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1 By Francis V. Cristiano, Esq. Cristiano PROFESSIONAL NEGLIGENCE Significant Professional Negligence Cases and Developments during the Past Year - A Review and Some Observations Supreme Court Decisions There were three Supreme Court decisions rendered this past year that addressed medical, legal, and other pro - fessional negligence issues. Warden v. Exempla, Inc. The Scope of Rebuttal Testimony under Rule 26(a)(2)(C)(III), as well as Todd Criteria Applied to Expert Witness Disclosures Warden v. Exempla, Inc. 1 written by Justice Rice, dealt with significant issues regarding the always challenging issue of the proper scope of rebuttal testimony, as con tem plated by sub - section (III) to Rule 26(a)(2)(C), as well as to the possible application of sanctions pursuant to Rule 37(c)(1) for late expert witness disclosures, and the necessary over lay of the substantially justified or harmless standards of Todd v. Bear Valley Vill. Apts. 2 The facts in Warden were profound. Noah Warden, a minor, was born with severe brain damage. He was born on December 22, After nine hours of labor, he was deliver - ed by emergency cesarean section. At birth, his umbilical cord was wrapped around his neck. He was unresponsive and had no heartbeat. After several minutes of resuscitation efforts, Exempla personnel restored Noah s heartbeat and placed him on a ventilator. The Wardens maintained that Noah was injured by a preventable intrapartum event, i.e., Exempla s failure to properly monitor data generated by the fetal monitoring strip during Noah s birth and react appropri - ately. Exempla, on the other hand, contended that Noah s injuries occurred days, or possibly weeks before his birth, and relied upon the analysis of a placental pathologist, Dr. Weslie Tyson, who examined Noah s umbilical cord shortly after birth and contended that he found significant abnormalities, all suggesting that Noah s oxygen depriva - tion took place well before his mother s labor. The Wardens made initial expert disclosures under Rule 26(a)(2), which included the disclosure of two experts, Drs. Cokely and Wilson. Dr. Cokely maintained that the doctors and nurses charged with Noah s care could have prevented his injuries by proper fetal monitoring. Dr. Wilson s opinions concerned the cost of rehabilitation care costs Noah required. The Wardens also disclosed Jeffrey Opp who created a finan - cial analysis concerning the parents expected costs in light of Noah s condition. Opp assumed Noah would live for over 70 years, pursuant to the Colorado statutory mortality tables and did not consider the effect of Noah s medical condition on his life expectancy. After deposing the Wardens experts, Exempla disclosed its own experts. Among other things, they opined that Noah s condition at birth was not the consequence of intrapartum events, but instead significantly pre-existed his labor and delivery based upon Dr. Tyson s study of Noah s umbilical cord shortly after his birth. Exempla s experts conclusions rested in large part, on a 2003 American College of Obstetricians and Gynecologists study titled, Neonatal Encephalopathy and Cerebral Palsy: Defining the Patho - genesis and Pathophysiology ( NEACP ). The NEACP report outlined four essential criteria for finding that deficits of this sort were caused by intrapartum events, which Exempla s experts contended were not satisfied in Noah s case. Instead, they concluded that Noah s umbilical gas values belied the Wardens allegations that Noah s injuries occurred during labor. Exempla also endorsed two experts to testify concerning Noah s shortened life expectancy. In response, the Wardens endorsed four new rebuttal ex - perts, including Dr. Shott, a biostatistician, who questioned the validity of the NEACP criteria and their testing methods, concluding that the report was junk science, not worthy of consideration. Among other things, Dr. Shott pointed Colorado Trial Lawyers Association Trial Talk December/January

2 PROFESSIONAL NEGLIGENCE Cristiano out that he had reviewed all 72 articles cited by the report, believed that they did not rely upon properly per formed studies, and set arbitrary cut off values based upon statistically insignificant sample sizes. In addition to Dr. Shott s testimony, the Wardens rebuttal disclosures in - cluded expanding Dr. Cokely s and Dr. Wilson s testimony to address Noah s life expectancy. Exempla moved to strike these sup - ple mental expert witness disclosures, contending lack of timeliness. The mag - istrate granted the motion. The Wardens moved for an expedited review of the magistrate s order, and on May 7, 2012, the trial court affirmed such. The Colo rado Supreme Court granted the Wardens subsequent C.A.R. 21 petition. Some where during this process the trial date was continued to February The Supreme Court determined that the trial court had abused its discretion in striking the three experts, finding Dr. Shott s anticipated testimony to be within the definition of proper rebuttal evidence. And although not finding Drs. Cokely s and Wilson s testimony concerning Noah s life expectancy to have been proper rebuttal testimony, the Court found the striking of their endorsement was improper based upon a Todd analysis, which the Supreme Court applied to the Rule 26(a)(2) expert witness disclosures, largely be - cause the trial date had been continued. The Supreme Court s analysis of the proper scope of rebuttal testimony was significant and instructive with regard to an area of law that in many minds is oftentimes misunderstood or misapplied by trial courts. The essence of the defendant s contentions and the trial court s reasoning were that Dr. Shott s testimony concerning the NEACP study tended to support the Wardens case-in-chief, and thus because of such, was not properly categorized as rebuttal testimony. The Supreme Court, however, found this reasoning flawed. At the outset, it noted that Dr. Shott s testimony speci- fically refuted the defense s experts theory of causation and therefore con - stituted a proper rebuttal disclosure under Rule 26(a)(2)(C)(III). In this regard, the Court noted that his testi - mony was intended to contradict or rebut evidence on the same subject matter identified by another party [in a prior disclosure]. 3 With regard to the argument that the testimony, as well, supported the Wardens case in chief, the court noted with regard to rebuttal testimony that [i]n Colorado, rebuttal evidence may take a variety of forms, in - cluding any competent evidence which explains, refutes, counter - acts, or disproves the evidence put on by the other party, even if the rebuttal evidence also tends to support the party s case-in-chief.... Thus, Colorado evi dentiary rules afford a party presenting rebuttal evidence significant leeway so long as the evidence rebuts some portion of an opposing party s claim. 4 As explained by the court, Dr. Shott s testimony attacked the NEACP report relied upon by Exempla s experts [and thus] refuted the theory underlying Exempla s causation analysis. That it concomitantly helped the Wardens case-in-chief does not mean that it was an improper rebuttal disclosure. 5 Thus, the trial court had abused its dis - cretion in striking his endorsement. With regard to Dr. Cokely s and Dr. Wilson s testimony regarding Noah s life expectancy, however, the court noted that such likely should have been included in the Wardens initial disclosures because it went directly to the damages element of their negligence claim. Nevertheless, it concluded that the trial court abused its discretion when it struck the life expectancy testimony because Exempla was not harmed by the late disclosure, 6 based upon a Rule 37(c)(1) and Todd analysis. In doing such, the court emphasized that the trial date had been continued to February 2013, and thus the supple - mental disclosures to Dr. Cokely s and Dr. Wilson s testimony had been made approximately 16 months prior to such on October 17, Thus, it rectified a misconception held by some courts that they can per se hold parties to disclosure deadlines established with regard to an original trial date without a Todd analysis, even though the trial date has been continued to a point where the disclosures are effectively given well prior to the new trial date. In more detail, in reviewing the five factors from Todd, 7 the court noted that [t]hree of the five factors required trial courts consider the timing of the errant disclosures vis-à-vis the trial. Thus, in Todd the late disclosure was harmless in large part because of an unrelated continuance [gave the potentially-prejudiced defendant] more time to prepare its case. 8 Thus, the court noted, in light of the advanc - ed trial date of this case, considering the specific Todd factors, the Wardens late disclosure was harmless. The trial was continued to February, 2013; and, as in Todd, the continuance was un - related to the de fective disclosures. 9 In reviewing the other considerations of Todd, the court noted with regard to the issue of pre judice, that any pre ju - dice to Exempla is slight when compared to the impor tance of this testimony to the Wardens negligence claim. 10 With regard to the surprise factor the court noted that since the disclosure address - es Exempla s experts life expectancy 18 December/January 2014 Trial Talk Colorado Trial Lawyers Association

3 Cristiano PROFESSIONAL NEGLIGENCE testimony... the surprise suffered by Exempla only concerns the evidence s impact on Exempla s defense; this is not the type of surprise warranting sanc tions under Rule The court concluded as well that the trial disruption factor of Todd was not implicated as well be- cause the trial is still months away. 12 Finally, the court noted, nothing in the record indicates that the Wardens acted in bad faith or delayed these expert dis - closures to gain a tactical advantage. 13 All of this is clearly important and significant guidance to trial attorneys confronted with motions to strike expert witness disclosures. Concerning the App. for Under ground Water Rights legal negligence the right of a sued attorney to intervene in subsequent proceedings affecting his former client s damages Concerning the Application for Underground Water Rights 14 addressed an intriguing issue the right of a sued attorney to intervene in a subsequent action that will have a direct impact on his former client s damages, and thus the client s damage claim against the attorney. In this case, the Cherokee Metro - poli tan District ( Cherokee ) was a governmental body responsible for providing water to its landowners and residents. Cherokee negotiated an agree - ment with a water management district, which granted to it conditional water rights and wells which Cherokee uti lized. Pursuant to the stipulation, Cherokee had two years from the date the wells were put to beneficial use to apply to make its conditional rights to the wells absolute. On April 28, 2006, Chero kee put Well 17 to beneficial use, but did not apply to make the conditional rights absolute until at least April 30, Because Cherokee did not file timely applications, the water court held that Cherokee had abandoned its rights to Wells At that point, Cherokee sued its attorneys, Felt, Monson & Culichia, LLC ( FMC ), for legal negli - gence, claiming the value of the lost water rights as its damages. In an initial appeal, although the Supreme Court affirmed the trial court s ruling that Cherokee had abandoned the portion of its conditional rights that it failed to make absolute by failing to timely file its application for such, it interpreted the water court s ruling to mean that Cherokee had abandoned only the portions of the conditional rights to Wells for which it had untimely filed to make absolute. 15 The Supreme Court, therefore, remand - ed the matter back to the water court to determine the remaining question of whether Cherokee should receive a finding of reasonable diligence for the remaining conditional portions or whe ther the stipulated decree man - dates that those amounts should be considered abandoned. 16 Given that the water court s determin - ations in that regard would significantly impact FMC s interest in reducing its potential exposure in the legal negli - gence claim by Cherokee, FMC moved to intervene in the underlying water case pursuant to C.R.C.P. 24(a) and (b). No party opposed the motion. The trial court, however, issued its order stating: Intervention is denied. See Stone v. Satriana, 41 P.3d 705 (Colo. 2002) and People ex. Rel. Dunbar v. South Platte Water Conservancy District, 139 Colo. 503, 343 P.2d 812 (1959). The appeal to the Supreme Court by FMC followed, with FMC seeking reversal of the water court s order denying intervention. In a divided, 4 to 3 decision, with Justice Eid writing for the majority, the court determined that the water court had not abused its discretion in denying such. Justice Marquez, on the other hand, wrote for the minority, which was of the opinion that it had. At the outset, the majority deter - mined that there was no mandatory intervention pursuant to C.R.C.P. 24 (a) because we find that FMC s interest [was] adequately represented by existing parties. At best, this seems to be a debatable proposition. The commit - ment of a sued attorney to limit his or her damage exposure in a legal negligence claim would seem to far exceed that of his former client who stands to recover either from the results of the continu ing litigation or from the legal negli gence claim and typically shows little pre ference concerning the source of the recovered funds. The ma - jority, however, adopted a compelling showing stand ard regarding whether the applicant s interest were not being adequately represented. In this re - gard, the major ity emphasized, for example, even though two parties may have different motivations for an interest, the interest may nevertheless be identical, 17 there is no indication that Cherokee [sought] to settle the matter to FMC s detriment, 18 nor did FMC claim that Cherokee [had] failed to ini - tiate liti ga tion to protect their common interest or to appeal an adverse ruling in order to mitigate dam ages. 19 Thus, it con cluded, there was no compelling argument showing that the applicant s interest was not being represented by the existing parties. With regard to permissive interven - tion as contemplated by C.R.C.P. 24(b), the majority opined that the trial court was within its dis cretion to deny such because consistent with the trial court s reference to the case law in its order, FMC was seeking to join the suit very late in the proceedings. 20 Justice Marquez, however, writing on behalf of a three-person minority was of the opinion that the trial court Colorado Trial Lawyers Association Trial Talk December/January

4 PROFESSIONAL NEGLIGENCE Cristiano had erred in denying FMC s motion to intervene as a matter of right under C.R.C.P. 24(a). She stated that the bur den of showing that the representation was inadequate should be treated as minimal, citing the U.S. Supreme Court decision of Trbovich v. United Mine Workers of Am. 21 She stated in conclusion that [a]t a minimum, under the circumstances presented here, there are reasonable doubts about whether Cherokee will adequately represent FMC s interest. 22 However, even though the majority did not conclude that the trial court had abused its discretion in allowing this type of intervention, this should not be construed to establish a rule that inter - vention in these types of circumstances is improper per se. To the contrary, it suggests that an opposite decision by the water court would also not have been improper and was within the discretion of the trial court to grant such. Attorneys, who find themselves defendants in legal negli gence actions, where the underlying proceedings continue that might have a bearing on their ultimate liability, might wish to consider this. Gibbons v. Ludlow Damage Criteria for Legal Negligence and Broker Negligence Claims Involving Underlying Sales Transactions Gibbons v. Ludlow 23 involved an underlying real estate transaction where the sellers had retained a transactional real estate broker and an attorney to assist them with the sale. The total con tractual purchase price for the pro - perty was $6,550, When the sellers reviewed the drafted settlement statement one week before closing, they were surprised to learn that the purchaser would receive a $1,615, credit against the purchase price at closing for infrastructure costs. They contend - ed they had not been advised of this by their attorneys or their real estate agent who brokered the deal, but were forced to close on the property regardless, because of their contractual obligation. They then brought an action against their attorneys and the involved trans - actional real estate broker for essentially the $1,615, credit, claiming that their attorneys and the broker caused them to have to sell the property $1.6 million less than what it was worth. At the trial court level, after substan - tial discovery, the court granted the defendants motion for summary judgment. The court based this upon defendants contentions plaintiffs could not sustain their claim against the attor - neys of the broker for lack of provable causation, unless they brought forward proof that the original sellers would have paid the extra money or that they could have sold the property to another identi - fiable person or entity for $6.6 million. The sellers appealed to the court of appeals, and in a split decision, the court of appeals reversed the trial court, and held that there was a sufficient prima facie evidence of causation based upon three unconsummated deals and testi - mony from the purchaser s president that there was other interest in the pro - perty at the listed price. 24 There was also evidence that the sellers had received a market analysis, which conclud ed the market value of the property in as is, condition was $6,600,000. Somewhat surprisingly, upon certiorari review, the Supreme Court disagreed and reversed the court of appeals decision. Based upon the well-known propo - sition, the fact of damages cannot be based solely on speculation, guesses, or estimates, and that damages must be estab lished beyond a mere possi - bility or speculation, 25 the Supreme Court established a seemingly per se rule that [i]n cases involving an alleged unfavor able transaction, a plaintiff must show that he would have obtained a more favorable result in the underlying transaction but for the professional s negligence. Moreover, in the major - ity s opinion, this must come in the form of one or two ways: (1) by prov - ing that he would have been able to obtain a better deal in the underlying transaction the better deal scenario; or (2) that he would have been better off by walking away from the deal the no deal scenario. 26 With regard to the better deal application, the majority eliminated this as a possibility in the case at bar, because the parties did not dispute that the seller would not have purchased the property at the contracted price of $6,597, without the infrastructure credit provision. Thus, the Supreme Court concluded, as a matter of law, the sellers [had] not es tablished the fact of damages for causation under the better deal theory. 27 With regard to the no deal applica - tion, even though the plaintiffs offered an appraisal or market analysis which showed a $6.6 million value of the pro - perty, this was deemed to be insufficient, because the sellers [did] not present any evidence that such a buyer was available or that the property could have garnered $6.6 million, elabor - ating that the sellers [did] not offer for example, any expert testimony regarding the mar ket conditions in the area at the time of the sale, or compar - able sales in the area at the time, or any other evidence regarding the likelihood of a sale at a higher price than that paid by [the purchaser]. 28 Justice Coats, and the rest of the minority, however, disagreed with the majority s holding. He opined that at the outset, the majority simply mis - reads the allegations of the sellers complaint. Rather than seeking $1.6 m[illion] in lost profits from a 20 December/January 2014 Trial Talk Colorado Trial Lawyers Association

5 Cristiano PROFESSIONAL NEGLIGENCE negli gently handled real estate trans - action, the sellers seek damages for having to part with an asset, against their will, due to the negligence of the broker. 29 He further opined that: [E]ven if lost profits were the only kind of injury possible from real estate broker malpractice, to make a survival of a motion for summary judgment contingent on the pro - duc tion of evidence of lost profits from another prospective sale equaling the claimed damages is not only unrealistic but an un - justified departure from existing law. Unlike the examples of speculative, remote or imaginary evidence of future profits relied upon by the majority, a hypo the - tical market for real property based on sales of more or less comparable properties constitutes a sufficient measure of damages for a multitude of legal purposes. Furthermore, while it may be ne - ces sary to demonstrate a genuine dispute about the cause of injury, surviving a motion for summary judgment has never been contin - gent upon producing evidence of the precise amount of claim - ed damages. 30 Court of Appeals Decisions There were two significant court of appeals decisions rendered concern - ing medical negligence. Harner v. Chapman The Saga of the Misunderstood Doctrine of Res Ipsa Loquitur Harner v. Chapman, 31 involving medi cal negligence issues, addressed again the issue of whether res ipsa loquitur shifts the burden of proof or merely the burden of coming forward with evidence as described with re gard to presumptions in general in CRE 301. Likely, because of its effect, there seemingly is no other doctrine, which raises the ire of defendants more than res ipsa loquitur. Res ipsa is founded on the simple concept that where one party is likely in control of an instru - mentality that causes an accident or injury - and the injury suffered is not the type that typi cally occurs in the absence of negligence - logic has it that presumptively the in dividual in charge of the instrumental ity was negligent, absent further evidentiary explanation satisfactory to the trier of fact that overcomes the presumption. In medical negligence cases, where the patient is oftentimes unconscious at the time of injury and certainly at a distinct dis - advantage in terms of access to relevant evidence, the doctrine be comes much more significant. Perhaps because of this, defendants resist it all the more, oftentimes making it out to be something much more complicated and inflexible than it is. In 1944, in the well-known case of Ybarra v. Spangard, 32 the California Supreme Court well-described the quandary of res ipsa loquitur in medi - cal cases as follows: There is, however, some uncer tain - ty as to the extent to which res ipsa loquitur may be invoked in cases of injury from medical treatment. This is in part due to the tendency, in some decisions, to lay undue emphasis on the limi tations of the doctrine, and to give too little atten - tion to its basic under lying purpose. The result has been that a simple, understand able rule of circum - stantial evidence, with a sound back ground of common sense and human experience, has oc - casion ally been transformed into a rigid legal formula, which arbi - trarily precludes its appli cation in many cases where it is most important that it should be applied. If the doctrine is to con tinue to serve a useful pur - pose, we should not forget that the particular force and justice of the rule, regarded as a pre - sump tion throwing upon the party charged the duty of pro - ducing evidence, consists in the circumstance that the chief evi - dence of the true cause, whether culpable or innocent, is practically accessible to him but inaccessible to the injured person. 33 Thus, in Ybarra the court held the doctrine applicable even though the plaintiff could only identify a group of persons who had control over the possible instrumentalities that may have caused his injuries. As set forth by the court: We merely hold that where a plain - tiff receives unusual injuries while unconscious and in the course of medical treatment, all those defend - ants who had any control over his body or the instrumentalities which might have caused the in juries may properly be called upon to meet the inference of negligence by giving an ex planation of their conduct. 34 Although there was some uncertainty about the effects of what was some - times referred to as an inference of negligence, versus a presumption of negligence was resolved by the Colorado Supreme Court in 1958, in a scholarly and memorable decision written by Justice Frantz, Weiss v. Axler, 35 well worth reading by anyone interested in understanding the doctrine. At the outset, the court ex plained the origins and purpose of the doctrine by referring to language in the 1863 semi - nal case, Byrne v. Boadle as follows: A landmark case in the develop - ment of res ipsa loquitur was Byrne v. Boadle, 2 H. & C. 722, Colorado Trial Lawyers Association Trial Talk December/January

6 PROFESSIONAL NEGLIGENCE Cristiano 159 Eng. Rep. 299 (1863). The opinion was written by the cele - brated Chief Baron Pollock. A barrel fell from a window in the defendant s warehouse and injured plaintiff. In the course of the opinion, Pollock stated that the fact of its falling is prima facie evidence of negligence, and the plaintiff who was injured by it is not bound to show that it could not fall without negligence, but if there are facts inconsistent with negligence, it is for the defendant to prove them. 36 The court continued with this discussion as follows: Sir Frederick Pollock in his great work, The Law of Torts, (12th ed.), in discussing Byrne v. Boadle, clearly outlines the function of res ipsa loquitur in these words: Where damage is done by the falling of objects into a highway from a building, the modern rule is that the accident, in the absence of explanation, is of itself evidence of negligence. In other words, the burden of proof is on the occupier of the building. If he cannot show that the accident was due to some cause consistent with the due re - pair and careful management of the structure, he is liable. 37 Most importantly, in dealing with the inference versus presumption issue, Justice Frantz, after having brief - ly discussed a 1931 Colorado decision, Clune v. Mercereau, 38 where the court determined that the doctrine was de - stroyed by the plaintiff merely calling the defendant for cross-examination, and with Justice Frantz (as he stated) paradoxically... moving backward... to return to the doctrine s earliest meaning and utility, wrote as follows: Such resolution [of the issue] is a judicial function; and since the court decides as a matter of law the existence of prob able negligence making a prima facie case, the pre sumption is truly one of law. Hence, to speak of inferring negli - gence in a res ipsa loquitur case is to misuse the term. Infer ring is a fact-finding function, whether trial is to court or jury, and involves the discretion of the trier of the facts whether to accept or reject the inference. Not so as to the presumption of negligence in a case where res ipsa loquitur is applicable; there it is conclusive as a matter of law unless the evi dence given in explanation by the defend - ant destroys the presumption. The process of inferring relates to facts and their weight. A presump - tion of law cannot be weighed; its effect is static; in one case, it can - not be said to have less weight than in another. A presumption has force; evidence, weight. Judges and text-writers have inveighed against the notion that presump - tions can be weighed as evidence. The doctrine of res ipsa loquitur creates a compulsive presump tion of negligence, which continues to exist until the defendant has satis - fied the court or jury, whichever is to find the fact, by a preponder - ance of the evidence that he was not negligent. If he has thus satis - fied the trier of the facts, he has destroyed the presumption. Thus, the sole question in a res ipsa loquitur case is: has the defend - ant overcome the prima facie case of negligence against him by establishing by evidence satisfactory to the jury that he was not negligent? The defendant s explanation does not per se destroy the presumption; the conviction of the jury (or the court in a trial to it) that the explanation exoner - ates the defendant dis sipates the presumption. 39 Thus, in a case perhaps written for the ages by Justice Franz, the welldefined rule was pronounced, [o]nce the presumption of negligence arises the burden shifts to the defendant to over - come the presumption, and to establish affirmatively that no negli gence existed on his part. 40 That is, it shifts the burden of proof and not merely the burden of coming forward. In 1979, however, C.R.E. 301 was passed, which provided in pertinent part: [A] presumption imposes upon the party against whom it is directed the burden of going forward with evidence to rebut or meet the presumption, but does not shift to such party the burden of proof in the sense of the risk of nonpersuasion, which remains throughout the trial upon the party on whom it was originally cast. Thus, despite the compelling logic of Justice Frantz in Weiss v. Axler, the rule created uncertainty with regard to the effect of res ipsa loquitur. In the case of Stone s Farm Supply, Inc. v. Deacon, 41 decided 12 years after CRE 301 was adopted, the Colorado Supreme Court seemingly answered the question: Res ipsa loquitur allows an inference of breach of duty and causation and requires the defendant to prove by a preponderance of the evidence that he was not negligent. 42 Later, Justice Martinez concurred in Kendrick v. Pippin, 43 noting, as well, that res ipsa loquitur was merely a presumption that shifts the burden to the defendant to prove that he or she was not negligent December/January 2014 Trial Talk Colorado Trial Lawyers Association

7 Cristiano PROFESSIONAL NEGLIGENCE For one reason or another, however, the Supreme Court Committee on Civil Jury Instructions was not convinced. They referred to the language of Deacon to have perhaps only been dicta, giving alternative versions of the instruction and stating, [t]he Committee does not take any position as to whether the statements by the Supreme Court regarding res ipsa loquitur in Deacon were intended to except the doctrine of res ipsa loquitur from the operation of Rule 301 or whether the statements were only dicta and Rule 301 governs the doctrine. 45 Thus, opponents of the doctrine could argue with some support from the Committee that it merely shifted the burden of moving forward as described by the Supreme Court in 1931 in Clune v. Mercereau, and not by the Supreme Court s pronouncement 27 years later, in Weiss v. Axler. This finally came to a head in 2009 in the court of appeals decision Ochoa v. Vered. 46 Judge Webb repeated the Deacon language and concluded that we are not persuaded that the res ipsa loquitur instruction improperly shifted the burden of disproving negligence to Dr. Vered by his reliance on CRE 301, and that any tension between Deacon and CRE 301 must be resolved by our Supreme Court. This, however, still did not resolve the issue and in Harner, which was tried well after Ochoa, the trial judge was still not persuaded to follow what by that time had been the unequivocal direction of at least a division of the court of appeals, and refused to instruct the jury that the doctrine shifted the burden of proof. Following an unfavor - able jury verdict, Harner appealed. In a well-written decision by Judge Gabriel, the court of appeals agreed with Harner and ruled that the trial court had erred in not instructing the jury that the doc - trine shifted the burden of proof, and not simply the burden of going for ward. It concluded, as well, that the error was not harmless and ordered a new trial. In doing so, it fully recognized the defend ant s C.R.E. 301 arguments, but allowed the precedents of Deacon and Weiss to stand in light of the language in Deacon, as well as in Ochoa, as well as based upon the concept that the court of appeals is not at liberty to disregard a rule announced in a prior Supreme Court case absent some clear indication that the Supreme Court had overruled its prior case. 47 In light of the uncertainty, however, the court of appeals urged the Supreme Court to review the issue stating, we respectfully urge that court to take up that issue in this case. 48 On September 9, 2013 that request was answered by the Supreme Court, which granted certiorari with regard to the issue of whether the court of appeals erred in holding, based upon Weiss v. Axler that res ipsa loquitur shifts the burden of proof to the defend - ant despite the adoption of CRE 301, Colorado Trial Lawyers Association Trial Talk December/January

8 PROFESSIONAL NEGLIGENCE Cristiano which provides that a presumption... does not shift... the burden of proof And the story continues. Marcellot v. Exempla Psychiatric Personnel and Facilities Immunity for Failure to Warn or Protect against a Mental Health Patient s Violent Behavior Marcellot v. Exempla, Inc. 50 dealt with the immunity established under , C.R.S. for a psychiatric or professional facility failing to warn against a mental health patient s vio - lent behavior. Section 117 essentially provides immunity from liability for such facilities failure to warn against a mental health patient s violent behavior in their facility except for their duty to respond to serious threat[s] of immi - nent physical violence against speci fic person or persons, by timely making efforts to notify the person threat ened as well as notify the appropriate law enforcement agencies concerning such, with the exception to the statute involving the negligent release of a mental health patient or the negligent failure to initiate involuntary 72-hour treatment for a patient that appears to be an imminent danger to others. In Marcellot the plaintiff contended that she had asked a direct question to the staff at this psychiatric facility whether there were any patients who presented special risks to her safety or to that of her students, and they advised that there were none. Plaintiff argued that the im - munity of 117 did not apply to false information given by the facility in response to a direct question. She con tended as well that the Premises Liability Act at , C.R.S., which included a landowner s duty to warn an invitee such as herself of dan - gers of which he was aware, overrides The trial court, however, disagreed and dismissed the action based upon Exempla s C.R.C.P. 12(b)(5) motion to dismiss, and the court of appeals agreed. Thus, , which provides this type of immunity, is in full force and effect. The only possible exception to a psychiatric health care worker or facility s failure to warn are the excep - tions set forth in the statute itself. This includes an obligation to timely warn the individual of imminent threats, as well as to advise appropriate law enforcement agencies, as well as pos sible liability for failing to initiate an involuntary 72-hour treatment and evaluation program for an individual who appears to be an imminent danger to others. Francis V. Frank Cristiano is a long time CTLA member and member of its Board since His offices are in the Denver Technological Center, and his practice emphasizes professional negligence, serious personal injury and business torts. He is Trial Talk s professional negligence editor. He is available at Endnotes: 1 Warden v. Exempla, Inc, 291 P.3d. 30 (2012). 2 Todd v. Bear Valley Vill. Apts., 980 P.2d 973 (Colo. 1999). Justice Rice wrote this opinion as well as the Warden opinion. 3 Warden, 291 P.3d. at at 35 (emphasis added). 5 at 36 (emphasis added). 6 7 at Concerning the App. for Underground Water Rights, 304 P.3d 1167 (Colo. 2013). 15 at at at at Trbovich v. United Mine Workers of Am., 92 S.Ct. 630, n. 10 (1972). 22 Underground Water Rights, 304 P.3d 1167, Gibbons v. Ludlow, 304 P.3d 239 (Colo. 2013). 24 Ludlow v. Gibbons, No. 10 CA 1719, P.3 rd (Colo. App. 2011). 25 Gibbons, 304 P.3 rd 239 at at at at at 250 (citations omitted). 31 Harner v. Chapman, 2012 COA 218 (Colo. App. 2012). 32 Ybarra v. Spangard, 25 Cal.2d 486, 154 P.2d 687 (1944). 33 at , citing 9 WIGMORE, EVID at 382 (3d Ed.) (emphasis added). 34 at Weiss v. Axler, 328 P.2d 88, 92 (1958). 36 at at Clune v. Mercereau, 1 P.2d 101 (1931) 39 Weiss, 328 P.2d at (citations omitted). 40 at Stone s Farm Supply, Inc. v. Deacon, 805 P.2d 1109, 1114 n.10 (Colo. 1991). 42 at 1114 n Kendrick v. Pippin, 252 P.3d 1052 (Colo. 2011). 44 Harner v. Chapman, 2012 COA (Colo. App. 2012). 45 C.J.I.- Civ. 9:17, n Ochoa v. Vered, 212 P.3d 963, 970 (Colo.App. 2009). 47 Harner, 2012 COA 218 at Harner v. Chapman, cert. granted, 13 SC 72 (Sept. 9, 2013). 50 Marcellot v. Exempla, Inc., 2012 COA 200 (Nov. 8, 2012). 24 December/January 2014 Trial Talk Colorado Trial Lawyers Association